Glossary of Torts - Negligence

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Define negligence:
Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. M/ consist of either an act or an omission to act where there is a duty to act.
How do you analyze a negligence problem?
1. What d/ D do? Analyze duty of care and whether it was breached. People owe others a duty to us reasonable care so as to avoid unreasonable risks. Duty is breached when the actor fails to exercise such care.
2. What were the results of the D conduct? Did the D conduct actually cause P injury; did it proximately cause P injury; did P suffer any damages.
3. What did P do? Was the P contrib negl and was there an assumption of risk - if so, P own conduct defeats his claim.
What are the prima facie elements of negligence?
Duty -one has the duty to act as a reasonable person w/ act under similar circumstances, so as to avoid unreasonable risk of harm to others.
Breach - failure to conform to the reasonable person standard of care in a way that creates an unreasonable risk of harm to others. (Weigh burden on D to avoid risk and the utility of D conduct, against the probability of and likely gravity of the harm D conduct m/ cause)
Causation - m/b a causal connection b/w the D act or omission and the P injuries.
Damages - P has to suffer actual damages or c/n prevail.
What is the general standard of care?
Have a duty to act as a reasonable person w/ act in similar circumstances as to avoid unreasonable risk to others.
What is negligence per se?
Violation of a criminal statute which has three requirements:
1. if the statute provides a criminal penalty,
2. statute was designed to prevent kind of harm that befell the P and
3. P was a member of the class intended to be protected by the statute.
When can D avoid liability in a negl per se claim?
If D was unaware of the particular occasion for compliance, if compliance w/h/b more dangerous than violating the statute, if D reasonably attempted to comply or faced an emergency that prevented compliance.
What is the balancing test in determining if the D breached the standard?
Burden on the D to avoid risk and the utility of the D conduct is balanced against the probability and probable gravity of harm D conduct is likely to cause.
BEAMS (Bur, Util, Prob, Grav)
What is the foreseeable P?
You only owe a duty of care to foreseeable P.
Must an indiv act affirmatively for the benefit of others?
No, however, there are exceptions:
1. D act created the peril
2. A special rel’t mandates affirmative acts
3. D has undertaken to act for P benefit.
What are the three means of proving a negl claim?
Direct evidence, circumstantial evidence and res ipsa loquitur.
What is res ipsa loquitur?
(The thing speaks for itself)
Permits the factfinder to infer negl, where there is no direct evidence of negl. P m/ prove that:
1. There is no direct evidence of how D behaved in connection with the event that caused the injury
2. The event is of a kind that would not normally occur in the absence of negl
3. D was in exclusive control of the instrumentality causing injury
4. P d/n voluntarily contribute to the event that caused his injury.
What is the difference b/w cause in fact and proximate cause?
Cause in fact is the determination, under either the but for test or substantial factor test of whether D brought about P injuries.
Proximate cause involves the policy considerations limiting the scope of liability, determined primarily on the concept of foreseeability of risks and consequences. (Was the P injury w/in the scope of the risk created by D negl?)
What is the “But For” test?
D conduct is considered a cause in fact of an event if the vent w/n/h occurred “but for” the D conduct. Whether D conduct is the sole cause or one of several concurrent causes. Whether D conduct is the cause in fact of an event - standard test.
What is the Substantial Factor test?
D conduct is said to cause an event when it was a material element or substantial factor in producing it - only if there are multiple causes and the one you’re examining is not a but for cause.
What is an intervening cause?
1. Coming into active operation
2. In producing the result
3. After D negl
4. From a source independent of D negl.
What are foreseeable intervening causes?
Subseq forces which one should reasonably anticipate, or those which D s/ reasonably anticipate under the particular circumstances.
Indiv are responsible for foreseeable intervening causes of damage. What m/b foreseeable, the intervening force itself, or the result?
The result. Regardless of the cause, if the result is foreseeable, the original actor w/b liable. Exceptions:
1. Malicious, intentional tortious intervening acts
2. Intervention by one with a higher ethical duty to the victim
3. Extraordinarily negligent intervening conduct
4. Acts of God, where the resulting harm is of a different kind from that which made D conduct negl.
What is a superseding force?
Force coming into being after D negl act, which cancels D liability by breaking the chain of causation from D act to P injury. Unforeseeability of the results of the subseq force relieves D of liability. Not considered w/in the risk created by D original act.
In order to prevail on a negl claim, the P has to prove actual damages, he c/n win w/o such proof. What types of damages qualify?
General - non-economic losses.
Special - economic losses P suffers, past and future.
C/n recover punitive damages b/c supposed to punish D for particularly heinous conduct, negl is not intentional.
What are the defenses to negl?
Contributory negl
Assumption of risk
What is assumption of risk?
Indiv m/ know and appreciate the risk - P m/ actually know the risk he is incurring (objective)
M/ freely and voluntarily assume it.
P m/b completely barred from recovery.
What is contributory negl?
P conduct which d/n meet the standard of care for his own protection and is a cause of harm.
When it applies, it is a complete bar to any recovery by P. 46 states have modified to comparative negl by determining proportions of fault b/w D and P and allowing partial recovery due to fairness.
What is the difference b/w contrib and avoidable consequences?
Contrib - negl by P that takes place b/f any damage has occurred - P w/n/h suffered any harm.
Avoidable consequences - after a legal wring has occurred, while some damages m/h/b averted it bars recovery only for damages that c/h/b avoided.
What is comparative negl?
Rejects the all or nothing approach of contrib negl, and divides liability b/w P and D in proportion to their fault. P is allowed to recover a portion of his damages, reflecting the percentage of his injuries D caused.
What are the major types of compar negl?
Pure - P c/ recover damages from D no matter to what extent his own negl contributed to his injuries
Modified - P c/ only recover damages if his own fault caused less than a set fraction of his own injuries.
What is the doctrine of Last Clear Chance?
Used by P to rebut a claim of contrib negl - where the P w/ otherwise b/ ehld to h/b contrib, the D w/b liable if she had the last chance to avoid the harm, yet failed to do so.

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